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Getting asylum the luck of the draw?

Refugees seeking asylum in Canada are at the mercy of Immigration and Refugee Board adjudicators.

Failed refugee claimants, like the mother and daughter pictured here, are at the mercy of Immigration and Refugee Board adjudicators, some of whom have never approved a claim for asylum. (David Cooper / Toronto Star File Photo)

If you were a refugee seeking protection in Canada, you wouldn't want to cross the path of David McBean.

An adjudicator appointed to the Immigration and Refugee Board of Canada (IRB) since 2007, McBean sat on the hearings of 62 refugee cases in 2010 from Belize to Trinidad — and not a single asylum claim was granted. The same was true in 2009 and 2008.

“There is a concern of bias,” said Osgoode Hall law professor Sean Rehaag, who obtained and analyzed the data.

“It is an issue if the case outcome hinges on who made the decision. You're lucky if you had Cathryn Forbes (who granted asylum in 35 out of 35 cases). If you had David McBean, you would have no chance.”

Critics said the findings confirmed what many have known for years and called for the urgent establishment of a robust appeal mechanism to allow an independent review of these decisions.

Currently, a failed refugee can only ask for judicial review at the federal court, which can then only review legal errors and send the case back to another board member for redetermination.

“It is well known from people's experience that you can tell if a person (refugee) is going to be accepted or not by the name of the board member,” said Janet Dench of the Canadian Council for Refugees.

“We are dealing with people's lives here. Any decisions made can lead to someone being sent back to a place where they face persecution, torture and even death.”

There are many factors influencing an asylum adjudicator's grant rate:

• If an IRB member decides primarily on cases from one country such as Mexico, which has an average 11 per cent acceptance rate, it's more likely the member would have an overall lower grant rate.

• Adjudicators assigned to “expedited cases” that are pre-screened and determined to succeed at the outset are more likely to have a higher acceptance rate.

• Individual claimants may vary in their personal profiles and circumstances of persecution even if they are from the same country.

However, the discrepancies remain when Rehaag controlled the variables such as the country of origin of the claimants.

The 31 IRB members adjudicating 166 Albanian cases in 2010, for example, had a grant rate that ranged from zero to 100 per cent.

While most of the 30 adjudicators who ruled on the 108 Eritrean cases approved 100 per cent of the cases handled, an asylum seeker from Eritrea would only have a 50 per cent chance in front of IRB member Lesley Mason. The inconsistency in decision making could be unfair because there were also IRB members who tended to grant asylum at a very high rate, such as Forbes and Stuart Mutch (81.29 per cent out of 171 decisions).

“It seems like some members are loose cannons and are not at the same wavelength as others in the same team when adjudicating the same country,” said Toronto refugee lawyer Max Berger. “It shouldn't be the case.”

Rehaag said his data also showed that those claimants who had legal representation at the asylum hearing tended to have a much higher success rate (48.58 per cent ) than those who were unrepresented (11.79 per cent ). Refugee board members are appointed by the government from a pool of qualified applicants who must pass an exam to prove their knowledge of immigration and refugee issues. The terms are between one and three years. They are paid in the range of $102,300 and $120,400 a year.

Immigration Minister Jason Kenney could not be reached for comment. The IRB did not return calls from the Star.

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